Fault in Criminal Law: A Research Companion (Routledge 2022), edited by Alan Reed and Michael Bohlander with Bethany Simpson and Verity Adams

The published volumes in the Substantive Issues in Criminal Law series are on the following topics: Participation in Crime (Ashgate 2013); General Defences in Criminal Law (Ashgate 2014); Consent (Routledge 2017); Homicide in Criminal Law (Routledge 2019); Fault in Criminal Law (Routledge 2022). The most recent volume in the Substantive Issues in Criminal Law series focuses on fault (mens rea) as a definitional ingredient for criminal liability. Fault, or mens rea, refers to the state of mind of an offender and can be expressed explicitly, such as in the case of direct intent, or can be implied, as in the case of recklessness or oblique intent. This sixth volume in the Substantive Issues in Criminal Law series provides a critical exposition and analysis of selected key issues with regard to fault in English criminal law (Part 1). These include, for example, the fault requirement of offences relating to indecent photographs of children with reference to the Protection of Children Act 1978 and the Criminal Justice Act 1988 (Chapter 1 by Alisdair A Gillespie), the relative absence of a fault requirement in strict liability crimes and the implications thereof within the realms of retributive justice and legality (Chapter 3 by Alan Reed), and the nature and role of fault in so-called “crimes of passion”; that is when a crime is committed by an offender whilst in a passionate rage (Chapter 8 by John E Stannard). Part 2 of the volume – which is the focus of this discussion – provides a comprehensive and detailed exposition of fault as a definitional ingredient for criminal liability in the legal systems of a select number of jurisdictions. These comparative chapters follow a uniform research grid to facilitate a comparative reading (and research) of the rudiments of fault as it exists, is interpreted, and applied, in different legal systems.

The aims of the Substantive Issues in Criminal Law series (as is also evident from the brief exposition above on the content and design of its sixth volume) are to achieve two related outcomes: Firstly, the aim is to provide an in-depth analysis of an aspect of the criminal law general principles or a specific offence (or cluster of offences) which is of current interest or contention in the United Kingdom. A constant factor informing the choice of topics addressed in any given volume is the need for law reform (primarily from a UK vantage point), or, at least, the need to systematically and critically address areas of confusion and contention. The choice of issues addressed is often also informed by the need to assess the relationship and interconnectedness of general principles. For example, in the volume on Consent, the relationship between capacity and consent is discussed, while the volume on Participation in Crime contains a contribution on the relationship between participation in crime (as preparatory criminal conduct) and general principles of punishment, notably the retribution / prevention dichotomy. While the first part of each volume focuses on issues in UK criminal law, it is by no means only limited to the law of England and Wales. For instance, the volume on Homicide in Criminal Law also contains specialist contributions on Scots law (Chapter 2). The second aim of the Substantive Issues in Criminal Law series is to provide a wider comparative background on the topic of discussion; whether that is an aspect of the criminal law general principles or a specific offence or cluster of offences. The contribution of this comparative part in the volumes of the Substantive Issues in Criminal Law series has become a hallmark of the collection and makes a particularly valuable contribution to comparative criminal law generally.

While the comparative parts of the first volumes in the series were relatively “Western-centered” (simply because of the initial availability of participating authors), more recent volumes feature comparative chapters not only from Europe and North America, but also Russia, Africa, China, and Sharia law perspectives. Regarding the chapter on ‘Africa’ featured from this most recent sixth volume of the series onwards, it should be noted that the authors explain in the introductory part that Africa is a vast continent with 55 sovereign (and diverse) states. The chapter therefore does not purport to be a survey of all or even most African jurisdictions. Two jurisdictions – Burundi and South Africa – are discussed as representative jurisdictions of two traditions which can generally be described as ‘Francophone’ and ‘Anglophone’ in terms of legal culture. These terms are used to describe legal systems in Africa that are (due to colonialism) based on French/civil law and English/common law traditions. In the case of South Africa, there is further nuance, in that substantive criminal law principles are derived from both English common law and Roman-Dutch law, while procedural law is for the most part in the adversarial/English common law tradition. South Africa is therefore an interesting example of a so-called ‘mixed’ legal system, even though its formal legal culture can still be classified as part of the broader Anglophone tradition.

The comparative chapters are written to a uniform research grid to facilitate optimum comparison. ‘Optimum’ in this context means comparable general principles of criminal liability, definitions of crime, and relevant theory that are presented in such a way that the headings and sub-headings are exactly the same for each chapter, thus making it easy for the reader to see how equivalent (or roughly equivalent) terms are dealt with in the various jurisdictions. Working with a uniform research grid holds the risk of producing mere mechanical statements on the law as it is. Every effort is therefore made to meaningfully link the more philosophical, contentious, and reform focused issues on the topic, and as these may exist in each of the selected jurisdictions, with the first, UK-oriented part of each volume. The design of the research grid therefore also allows the authors to highlight philosophical and theoretical principles informing the criminal law of the jurisdiction under discussion. For example, recent volumes also include a specific heading on the influence of feminist and queer theory on the general principle or specific offence(s) under discussion. In this way, authors of the comparative chapters can bring attention to theoretical, doctrinal, and policy matters that go beyond positivistic restatements of the law as it exists, is interpreted, and applied, in different legal systems. In Chapter 14 of the recent sixth volume in the series focusing on fault in criminal law, Gerhard Kemp and Bernard Ntahiraja, show for example, how the influence of feminist and queer theory in Africa cannot be separated from the history of colonialism and subjugation. It is explained that “the violence of colonialism has made it difficult, if not impossible, and certainly unhelpful, to apply Western (universalist) philosophical frameworks to analyse social phenomena in Africa” (pp. 291-292). And in Chapter 15, focusing on the People’s Republic of China, Andra le Roux-Kemp discusses the historic and lasting importance of status and kinship relations as essential elements in Chinese criminal law. With reference to the principle of filial piety (孝, xiào), it is shown how “filial motivations as justification for criminal acts were often used to temper the agency of offenders and explain their moral turpitude, while unfilial behaviour was disserving of harsher punishment” (p. 315).

It is, of course, not always possible to find points of easy or exact comparison, nor is it possible for the authors of the comparative chapters to always relate exactly what is happening in their jurisdiction with all the headings and/or sub-headings that feature in the research grid. That, however, is in itself valuable for the comparative lawyer or researcher. In their chapter on Africa, for example, Kemp and Ntahiraja observe that the Penal Code of Burundi does not give any indication on the theory of fault it embraces, nor is fault or intention specifically defined or posited as a constituent element of every offence (p. 289). Fault or mens rea as a possible definitional ingredient for criminal liability rather depends on the formulation of the specific definitions of the various offences as these appear in the Penal Code of Burundi as well as other legislation (pp. 289-290). The judicial interpretation of these relevant legislative provisions, and in contrast to the position in many other jurisdictions, is therefore particularly important (p. 290). Also noteworthy is that in South Africa, the common law has gradually developed in such a way as to do away with categories of fault that are still distinct in other comparable jurisdictions. For instance, recklessness is no longer a discrete form of fault in South Africa (compared to England, where recklessness is retained as a discrete form of fault). In South African criminal law, the law changed so that recklessness is now merely an aspect of the test for intent in the form of dolus eventualis (p. 296). This can be seen as a radical simplification of mens rea in South African criminal law, but other systems, including England, are not following that approach (even though there are law reform proposals in, for instance, England which would simplify the definition of recklessness, but without doing away with it as a discrete form of fault). In the People’s Republic of China, on the other hand, le Roux-Kemp notes that criminal liability is determined with reference to the most essential characteristic of a crime; i.e. the degree of social danger or harm caused by the act (犯罪客观方面, fàn zuì kè guān fāng miàn), and that an offender’s subjective state of mind must also always be considered with reference to this overarching essential characteristic of crime (p. 318). The central importance of this essential characteristic of Chinese criminal law influences various aspects of fault as an essential ingredient for criminal liability. For example, despite no explicit provision being made for constructive liability in either the 1997 Criminal Law or the 1996 Criminal Procedure Law, and it having been generally accepted under the 1979 Criminal Law that an offender cannot be held criminally liable for the criminal consequences of conduct they did not foresee, constructive liability may nonetheless feature in the context of violations of resolutions, decisions, orders, instructions, and policies issued by the various organs of state, and for which no specific mens rea is required, but which may be subject to various administrative penalties (as opposed to conventional criminal punishments) (p. 324).

Many of the comparative chapters in the various volumes of the Substantive Issues in Criminal Law series present further layers of comparison that go beyond the headings and sub-headings of the uniform research grid. This is especially true of Chapters 14 and 15 of the most recent sixth volume in the series entitled Fault in Criminal Law. In Chapter 14, Kemp and Ntahiraja unpack the reception of colonial legal systems in the respective African jurisdictions. The comparison is therefore not only of countries (e.g. Burundi and the UK; South Africa and the UK), but also presents an internal comparison between the imposed colonial laws and the way in which the former colonies (Burundi; South Africa) developed distinct legal doctrine in comparison to the former colonisers (Belgium, the Netherlands, and Britain, respectively). And although Chapter 15 focusses exclusively on the criminal law of the People’s Republic of China, le Roux-Kemp builds in additional legal-historical layers of comparison by also providing a detailed exposition on how fault as an essential ingredient for criminal liability has developed in Chinese law from the early legal codes of Imperial China to date. In this regard it is interesting to note that there remain many similarities in terms of how criminal liability was determined in Imperial China compared to today (pp. 317-320), and that prior to the adoption of the 1979 Criminal Law, various forms of intent that were highly situation-specific were recognised even after the fall of the Qing Dynasty (清朝,qīng zhāo) in 1911 (pp. 320-322).

The Substantive Issues in Criminal Law series has thus far been dominated by topics concerning general principles. In years to come there will be more focus on specific offences. The volume on Homicide, serves as an example of how specific offences is approached. A volume on specific offences naturally gives authors the opportunity to integrate various general principles and policy matters that may inform legal developments concerning the offence in question. For instance, the volume on Homicide contains, among others, discussions on fair labelling, diminished responsibility, causation, procedural and forensic issues, and loss of self-control. The next volume in the series will focus on causation and is due for publication in 2023.

Posted by Andra le Roux-Kemp (University of Lincoln) and Gerhard Kemp (University of Derby)